9th Circuit, Barack Obama, Bracewell & Giuliani, Football, Guns / Firearms, Politics, Ruth Bader Ginsburg, Samuel Alito, Sanford Levinson, SCOTUS, Supreme Court, Vault rankings, Williams & Connolly

5 Stories of the Week: Ginsburg, Football, and More

Another week has come and gone. We’re post Independence Day, so strap in for the long grind to Labor Day before you get any rest. If you need a break, I suppose you can take some summers for a 3-hour lunch, assuming anyone still does that.

But the real importance of the week’s end is that it’s time again to compile my look at some notable stories from the week in legal news. Bring on “5 Thing Friday” or “Working for the Weekend” or something like that.

This week, we had Justice Ginsburg’s declaration that she’s not retiring, the Zimmerman trial continued on its tragically absurd course, Vault released its annual law firm rankings, the NFL got burned in court — twice — and Harry Reid figured out that there’s this thing called a filibuster and the Republicans are really good at it…

1. Justice Ginsburg to Court: “I wish I could quit you. On second thought, no I don’t.”

Earlier this week, the ABA Journal reported that the ATL readership’s favorite justice, Justice Ruth Bader Ginsburg, had no intention of retiring. At a whopping 80 years old, Justice Ginsburg acknowledges that liberals are, either overtly or covertly, pressuring her to resign to allow President Obama to nominate a like-minded replacement to the Court.

On the one hand, the Supreme Court still feigns that it’s a non-partisan institution — a claim that the cloistered justices don’t realize was entirely shot to hell when they decided a presidential election along party lines — and the justices act as though scheduling a retirement to assist a particular political ideology is beneath them. On a personal level, Justice Ginsburg avers that she’s in good health and her inability to stay awake during the State of the Union addresses of a man universally recognized as the most gifted political orator in the game is neither here nor there. The job is for life, and Justice Ginsburg has a lot of life in her.

Besides, she’s just waiting to see if Justice Alito crosses her one more time.

On the other hand, you can serve for life, you don’t have to serve for life. Life tenure exists ostensibly to keep the courts immune from electoral pressures, not to suggest that judges have the right to hold sway over the public until the day they die. Putting aside the concerns over politicizing the Court (and again, that train has sailed) for a second, there are profound implications for the administration of justice by older judges. In Deere v. Cullen (second item), the Ninth Circuit functionally ruled that judges suffering from dementia can sentence people to death. Which, I suppose, is the logical extension of the Republican argument that all shootings are really mental illness problems rather than a sign that the power to kill should be withheld from some folks, but not particularly useful evidence for keeping someone on the bench until they die.

This might sound a tad ageist, but that’s not the point. Justice Ginsburg is entirely competent right now and she does not need to leave her post for any medical reason that we know of, and I think there are many older judges who do a great job. The point is that everyone puts far too much totemic power into the concept that a judicial appointment is “for life” to the detriment of an honest assessment of the situation.

Take the case of Justice William O. Douglas, who suffered a debilitating stroke in 1974 and tried to continue serving on the Court for another 2 years. Technically he had been persuaded to retire, but in his condition he was unable to recognize that he’d retired or even that he was in any way impaired. Had Justice Fortas not appealed to his mentor to retire (they’d tried and failed to impeach him a couple of times before), Justice Douglas could have continued serving despite his condition, which, in fairness, still left him a better jurist than Justice Thomas. But it was an ignominious end to a sterling career on the Court that no one should have to repeat.

And something that debilitating can happen out of the blue as people get older. Such a calamity after oral argument but before the decision could place the legal landscape of the nation at the whim of the Fates.

I mean, is it really a public service to continue working just because you technically can? That literal interpretation of life tenure is also kind of arrogant. Texas Law professor Sanford Levinson touched on this briefly at the annual American Constitution Society conference. In a panel discussion, he pointed out the illogic of assuming that no other legal mind could interpret the law as well as a sitting Supreme Court justice, even though the justices got their jobs, not necessarily because they were the best legal minds, but because they were the best, most politically palatable legal minds under a certain age limit at the time of nomination to allow the party in the White House to maximize the effect of life tenure. There are great legal minds that will watch their practical chances of reaching the high court and contributing to the betterment of the law come and go while a current justice continues to serve.

Personally, I like Justice Ginsburg’s jurisprudence, but this mentality applies to all the justices. The courts are the only American institution with a monarchical flavor, and in a monarchy you’re stuck with King Joffrey for life.

Sure, she may be sticking with her job because she does not want to politicize the Court. Not in the way that Bush v. Gore politicized the Court, but in the sense that the confirmation process for a Supreme Court justice to replace the dean of the Court’s liberal wing could be a filibuster-fueled nightmare. Fine, I guess. But unless she’s looking at a different Senatorial election map for 2014 than I am, she should give up the dream that it’s going to get better.

It could also turn out to be a clear political mistake. While no one foresees Barack Obama failing to nominate a reliable liberal to replace Justice Ginsburg — or that President Hillary Clinton will do the same — retiring jurists have been wrong before. Both Justice Earl Warren and Thurgood Marshall saw their retirement plans thwarted:

Exhibit A: Earl Warren. In 1968, he announced his retirement from the Court. Lyndon Johnson tried to replace him with Abe Fortas, but that went nowhere because it was an election year and because of Johnson’s weak political standing. As a result, Richard Nixon ended up choosing Warren Burger as the next Chief Justice. (Parenthetically, is there a modern Justice with a poorer reputation than Burger? Does anybody like that guy?)

Here’s the question. Why didn’t Warren retire earlier? He was not ill in 1968, so the retirement was more about politics. The answer must be that Warren thought LBJ would be reelected in 1968. By the time he realized that wasn’t going to happen, it was too late. A big mistake for a savvy guy who was Governor of California.

Exhibit B: Thurgood Marshall. He retired in 1991 and was replaced by Clarence Thomas. Marshall was in poor health by then, but he lived until 1993. Why didn’t he try to outlast the Bush 41 Administration? Probably because in the summer of 1991 Bush looked invincible with his high post-Gulf War approval ratings. It was not unreasonable for Marshall to think that it wasn’t worth the effort to hang on anymore.

My Conflict of Laws professor was married by Justice (then Judge) Burger, so he liked him… but only for that reason.

This is why the judiciary should transition to 16-year terms to preserve the insulation from the political process while not allowing judges to hold on and distort the legal landscape simply because they have better genes.

But for now we’re stuck with the system we’ve got. And in that system, I guess Justice Ginsburg can stay. Everyone deserves to stay until they win the SCOTUS March Madness pool at least once.

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